Mitigating IPR Conflict Under Sports Law

Author: Tushti Pande, 4th Year, B.Com LL.B (H), School of Law, Jagran Lakecity University, Bhopal
Co- Author: Parul Saxena, 4th Year, BBA LLB (H), School of Law, Jagran Lakecity University, Bhopal

Introduction to Sports:

In today’s world sports is a global phenomenon. Sports assumes immense cultural significance as a recreational pastime, competitive playing at a mature level, the elite and mainly professional level or in terms of spectating. In recent times sports has achieved so much essence that now it is a multi million-dollar industry. Both men and women perform under various circumstances and astonishing pressure and they often have to sacrifice other areas of their life. Sports are a significant part of any society and it goes beyond religion, caste and creed.

The American lawyer Howard Cosell quoted – “the importance that our society attaches to sports is incredible after all, is football a game or a religion? The people of this country have allowed sports to get completely out of hand.”

Introduction to Intellectual Property Right:

Intellectual Property Right is a kind of protection of new ideas. It helps in protecting genuine business assets and its origin in the form of an idea. For any invention or innovation an idea is involved, whether it is a name of a company or a creation of work or even when it is regarding innovative sporting technique or any new equipment.

An idea always is created by labour and hard work of an individual and hence it is needed to protect such an idea. Every individual has been given its own unique imagination and creativity. When a person uses such a unique idea in public there is a recourse which would prevent others from using or misusing his unique idea, without even paying that individual his due credit and proper acknowledgement.

Intellectual property rights have been accepted worldwide. IPR ensures that there is a material reward for the new and unique idea. IPR’s are very important and valuable to those who are involved in sports for livelihood. Such rights can be in various forms, such as protection of sporting slogans, sporting techniques, sports clubs’ names etc. Unless an idea is adequately protected in its early stages, it is unlikely that it would be a success in its maturity stage for its owner.

Intellectual Property Rights in Sports:

Giving Intellectual Property Rights to sports is a much disputed topic. Many foreign authors have extensively written about protection of sports move under the ambit of IPR, but literature lacks in India relating to the same.

It can be said that sports move is a combination of art, skills and judgement, which gives its inventor an extra advantage over its opponent. This extra advantage often decides the fate of the game and hence provides special protection to the so called “signature moves” becomes a necessity. Hence, sports moves do fall under the ambit of an idea of expression.[1]

Intellectual property and the business of sports:

It can be said that intellectual property lies at the heart of commercial opportunities offered by the world of sports. IP rights such as patents, trademark and broadcasting rights give the legal protection to secure the economic value of sport. This stimulates the growth of the sports industries and involves sporting organisations to finance high profile sports events and it also promotes sports development. Business transactions which are related to sponsorship, merchandising, and broadcasting and media deals are all built on IP rights. In recent times the sports industry has a growing impact on the world economy as it creates jobs and investments in public infrastructure and mobilising resources.

How does IP affect sports?

Trademark:

An essential role in creating value from an interest and vitality in sports is played by the brands. This in turn drives consumer loyalty and confidence about the quality and features of sporting goods. This also helps in generating allegiance to sports team and sportswear styles. The sports sector presents a unique opportunity to create a “domino effect” in trademark value creation. If we consider that an individual athlete who becomes a successful and dominant player in a team sport it can be seen that he or she may develop his or her own individual brand. Through such dominance the athlete can drive the growth and popularity of that athlete’s team as well as his or her entire professional league in which he or she plays. There are various examples which help in strengthening their brands and goodwill associated with their brands.

  • Jersey, branded grounds: trademarks in action

In recent times, it is very evident that when we stand in line to enter the stadium, we realise that many of the world’s popular playing grounds now bear the names and brands of their sponsor, as well as the team name and the logos. Such branding is aided by an international trademark registering system which is administered by the World Intellectual Property Organisation.

Brand owners often seek to control their trademarks such as logos or jingles, which sometimes happens to be touchpoints for their customers. In sports, trademark protected material signifies special qualities that attract fans which in turn helps to generate the income for companies to make big investments in new talent or better infrastructure.

  • Personal product: players and trademarks

Few players may use IP rights to control the use of certain images with which they are associated, for example, Jamaican sprinter Usain Bolt’s  “ lightning bolt” pose and his “ to di world” slogan, Michael Jordan’s “ jump man” pose and his air Jordan brand shoes, are all registered trademarks. Without having absolute rights over these poses and words, trademarks prevent unauthorised commercial use of products without the endorsement of the celebrities. Even without a registered trademark, however, celebrity athletics have “image (or personality) rights” to prevent unauthorised use of their name, lightness, or other personal attributes.[2]

Patents:

Sports is a sector which is very well known for its direct use and benefits from the patent system as it is natural that sporting equipment is continuously evolving. New technologies which help the athletes to jump higher swim faster, cycle longer and hit a ball harder and farther. A search of the google patents public data sets reveals hundreds of thousands of utility patents related to sports and making reference to such terms as “athletic or athletes”.

  • Sport tech – industrial designs and patents:

Some of the examples of objects whose designs can be protected are play gets going, competitors, swing bats, kick balls and cut back and forth in state-of-the-art gear.

During half time or between innings players sit down and stretch, reaching their heads towards multi-coloured shoes. This simple shoe actually contains multitudes- it may be protected by several IP rights, such as patents that protect the technology which is used to develop the shoe.[3]

Designs:

Design specific IP rights are an equally important IP right in the sector of sports in order to make a product attractive and desirable industrial designs are key to it. There are companies who spend their vast amounts of resources on understanding consumer taste and then they try to develop a stylish and attractive product design out of it to capture valuable and large market segments. These designs eventually become the most valuable assets for such companies.

Copyrights:

To keep fans interested and inspired copyrights play a significant role in maintaining the vitality of sports. The promotion and marketing of championships and sporting events, the artistic designs of the logos of sports, teams and sports competition, the literature contained in game day programs sold to fans and supporters, the merchandise, and the software of computer and online games are all copyrightable subject matter. The main source of funds for sports organisations to build stadiums, host sporting events, and carry out community outreach to maintain high levels of interest are revenues from broadcasting and media rights.

  • Lights, camera and copyright:

While the players warm up, television camera lights brighten as the announcers welcome broadcast audiences to the action. The advances in communication technologies- satellite, cable, broadband and mobile internet helped a lot in revolutionising broadcast sports coverage and it also helped in enabling billions of people around the globe to participate in the spectacle and excitement of major sporting events.

Protection against an unauthorised retransmission of broadcast and underpin the relationship between sports and television and the other media are all provided by copyright and related rights. Some of the media organisations invest huge sums of money for the exclusive rights to broadcast sporting events live.

Trade secrets:

Sports also generate a significant volume of trade secrets that plays a key role in competitive advantage and value creation. Information in the form of statistical analysis, scouting reports, dietary regimen, physiological metrics and psychological assessment technique are gathered by teams to gain a potential competitive advantage over their rivals. Sports gear often features secret new compounds and materials to allow athletes to perform better against their rivals in order to generate value. Companies heavily elaborate focus groups to find the right mix of features and designs to make their products more attractive and desirable in order to cover a large market segment for their business.[4]

Ambush Marketing:

Ambush marketing refers to the company’s attempt to capitalise over the popularity of a well-known property or event without the consent and authorisation of the necessary parties. One of the significant aspects of intellectual property rights in sports is the protection against ambush marketing. Huge space in sporting events has been acquired by ambush marketing and it refers to companies promoting their brands or products by associating them with a team, league or event without paying for the privilege.

Counterfeit:

One of the major threats which has been posed, is counterfeiting. The axiomatic and direct harm of counterfeits is suffered by the originators or the creators. The originators or the creators lose their income from the sale of illegitimate products that are counterfeited. For example, footwear can have a distinguished feature of the brand and its logo but the materials used in the manufacturing of that footwear might be of lower quality. In this case the creators would surely lose their goodwill specially because of the poor quality of counterfeit copies, among disappointed buyers who are certainly unaware of the counterfeit. This undermines a brand’s integrity and can result in net worthy losses of revenue. In sum, intellectual property owners sustain not only direct losses due to decreased market share, but they also suffer damage to the brands reputation and dilution of the brand, along with cost related to defending their rights. Counterfeiting represents relatively easy and fast funding for organised 900% profit margins. Moreover, counterfeiting is increasingly linked to terrorist groups.[5]

Intellectual property disputes in sports:

The various acts of infringements of Intellectual Property as well as the unauthorised use of Intellectual Property eventually lead to Intellectual Property disputes. When such disputes occur in the field of sports then dispute is known to be Intellectual Property dispute in sports. There are several issues related to Intellectual Property that can arise in the sports industry which includes infringement of trademarks, brand abuse, misbranding, misuse in malafide way, using the name of the sports personality without permission or without paying any licence fee or royalty, copyright infringement with regard to the copyrighted merchandise, sports equipment, artwork and logo, without licence broadcasting, piracy in audio visual recording, infringement in promotional material use, use of copyrighted software without licence or royalty, infringement of design, use of design without licence, use of design for promotion of other goods and in case of patents, the use of patented technology without authorisation from the owner of the patent. All such cases lead to the Intellectual property disputes in the sports sector which creates and leads to huge damage of goodwill, unfair trade practice, unfair competition and ultimately lead to huge commercial losses which could defeat the principle and sole purpose of exploring the commercial aspect of the sports industry.

Redressing IP disputes in sports:

The issues related to intellectual property in the field of sports can be prevented if there are more stringent and strict laws at international forums. And such laws should be abided thoroughly by all the countries.

The companies need to continuously monitor their Intellectual Property right by instituting effective systems and policy regulations to prevent infringement. Regular Intellectual Property audits will eventually help to identify Intellectual Property portfolios that need strengthening. Since sports clubs and associations spend a huge amount of money on sporting events, Intellectual Property protection is needed to safeguard their interest for effective management.

In India

In the Indian context it is quite evident that India needs sports law experts for the promotion of ethical practices in the sports sector of the country. It is indeed the need of the hour that the owners invest resources in registration, proper licences and contracts in order to protect the value of the sports and sporting assets as well as, actively protecting Intellectual property from infringement and abuse. The essay highly recommends that the legal contractual agreements must be in place protecting all forms of intellectual property created in sporting events, teams, individual players etc. so as to protect all the stakeholders and their financial interest. In India, there should be a legislation framed for personality rights and for building a successful sponsorship program so as to protect the image and status of celebrities of our country like other countries of the world.

India should also try to come up with a sports business model which could build an effective intellectual property rights strategy which could easily address the use of patents, trademarks, designs in sports as well as use of domain names which could address media and broadcasting rights. Free access to televised sports events can be an attractive approach to maintain balance between intellectual property rights and with the public interest.

The essay also recommends to adopt alternative dispute resolution techniques for enforcement of rights involving the disputes related to sports. As a developing country and with a serious intent to attract and sustain investments India needs to enact a law to protect confidential information particularly in the sports industry or to act as an adequate deterrent for prospective offenders.

Protecting and enforcing intellectual property in the sports industry is an essential component to ensure that sporting events remain a possible financial reality in India.[6]

Conclusion:

In today’s world, commercialization of sports is so widespread that the fight amongst sports clubs or associations is not only limited to the field but also in creating huge profit and credible sponsors out of it. Many of the clubs in the field of sports have business enterprise in exploiting their intellectual property and are also engaged in different businesses like merchandising, online games etc. this adventure of sports club and enterprises of generating revenue by utilizing their intellectual properties makes it necessary for them to eventually protect it. Intellectual property rights along with the legal protection to these rights helps in securing the economic value of sports.

The protection of the various classes of intellectual property would be in various forms, like merchandising is one of the most profitable businesses where the sports clubs and organisations have a larger stake. In merchandising, there are a lot of small but significantly high issues which can be such as ownership of intellectual property, sharing of revenues, secrecy etc. With the diverse personality rights infringement are taking place all around the world. The celebrities in the sports field today are very keen and vigilant about protecting their personality right. So, the proprietor should also be aware that they do not end up infringing the personality rights of any sports person. It is always recommended and favoured to take a good legal outlook on what can be used and what cannot be used, before starting that business.

In intellectual property rights it is very important to have good management in order to maximise economic returns. This has been rightly pointed out by professor De Werra in his book entitled “sports and intellectual property” in the following words- “ if intellectual property have something to learn from the sports industry, it can conversely be considered that the sports industry may have something to gain from the assimilation of the key values of intellectual property law.”

The essay recommends that it is a strong need in India to have experts in the field of law to protect ethical practices in the sports industry. It is indeed the need of the hour that the proprietor or the owner invest resources in proper licences, registration and contracts in order to protect the value of the sports and sporting asset as well as, keenly protecting intellectual property from infringement and abuse. The essay also recommends that the legal contractual agreements must be there in place of guarding all forms of intellectual property created in sports events, teams, individual players etc., so as to safeguard all the stakeholders and the financial interest of all the stakeholders. It is also recommended that India should come up with a legislation for protecting personality rights and should also try to build a successful sponsorship program so as to protect the image and status of the celebrities and sports personalities of our country.

The essay also recommends that India should come up with a sports business model which could help in building an effective intellectual property rights strategy that could address the use of patents, trademarks, designs, copyrights and other forms of intellectual property in the field of sports. It should also enact a framework for the administration and protection of domain name, which could address media and broadcasting rights. In order to maintain balance of intellectual property rights with the public interest free access to on-air sports events would be an attractive approach.

India can also try to adopt alternative dispute resolution methods and techniques for enforcement of intellectual property rights involving sports dispute as a developing country and having a serious intent to attract and sustain investments, India needs to enact a law to safeguard confidential information particularly in the sports industry to act as an adequate deterrent for potential offenders. In Spite of all the obstacles and hindrances, the government of India must try to pass the National Sports Ethics Commission Bill, 2016, which promises to improve the integrity of sports in India.

Protecting and enforcing intellectual property rights in the sports industry is an essential factor so as to ensure that the sporting events remain a possible financial actuality in India.[7]


[1]  Renuka Sara Abraham, IPR in sports, blog ipleaders, <https://www.google.com/amp/s/blog.ipleaders.in/intellectual-property-rights-ipr-in-sports/amp>/, (May 27, 2020, 1:09pm)

[2]  IP and sports background brief, wipo, <https://www.wipo.int/pressroom/en/briefs/ip_sports.html>, (May 28, 2020, 5:28pm)

[3] ibid

[4]  Vineet Chaudhary, sports and intellectual property rights, legalera, <http://www.legaleraonline.com/articles/sports-and-intellectual-property-rights>, (May 28, 2020, 8:38pm)

[5]Paras Sharma, intellectual property rights in sports, ijcrt, <https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.ijcrt.org/papers/IJCRT2003361.pdf&ved=2ahUKEwjw98eq29vpAhUXxTgGHUkeCtIQFjAEegQIARAB&usg=AOvVaw3YIulCVvAZ-So5EptEqBiJ>, (May 29, 2020, 5:35pm)

[6] Aswathy Sujith, sports and intellectual property rights- an overview on the India standards, thelawbridge, <https://www.google.com/url?sa=t&source=web&rct=j&url=http://thelawbrigade.com/wpcontent/uploads/2019/05/Aswathy.pdf&ved=2ahUKEwjiyIqb29vpAhXWzjgGHQjiAj0QFjAAegQIARAB&usg=AOvVaw3PwTYYB_miyuBI-K18qwF>j, (May 30, 2020, 7:23pm)

[7] Supra 5


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